## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

NOS. WR-84,700-0 1 & WR-8 4,700-02

EX PARTE K RISTIE MAYH UGH, Applicant

ON APPLICATION S FOR WRITS OF HABEAS CORPU S CAUSE NOS. 1995CR 1255A-W1 & 199 5CR12 56A-W1 IN THE 175 DISTRICT C OURT FR OM BEX AR COUNTY T H

NO. WR-84,701-01

EX PARTE E LIZA BETH RAMIREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS COR PUS

CAUSE NO. 1 995CR 1256B-W1 IN THE 175 DISTRICT C OURT FR OM BEX AR COUNTY T HNOS. WR-84,698-0 1 & WR-8 4,698-02

EX PARTE C ASSAN DRA RIVERA, Applicant

ON APPLICATION S FOR WRITS OF HABEAS CORPU S CAUSE NOS. 1995CR 1255C-W1 & 1995C R1256C -W1 IN THE 175 DISTRICT C OURT FR OM BEX AR COUNTY T H

NOS. WR-84,697-0 1 & WR-8 4,697-02

EX PARTE ANNA VASQUEZ, Applicant

ON APPLICATION S FOR WRITS OF HABEAS CORPU S CAUSE NOS. 1995CR 1255D-W1 & 1995CR 1256D-W1 IN THE 175 DISTRICT C OURT FR OM BEX AR COUNTY T H
N E W E L L , J., del ivered the opinion of the Court in which J O H N S O N , and R I C H A R D S O N , JJ ., joine d. K E L L E R , P.J., A N D K E A S L E R , J., joined majorit y opinion as to par t three. A L C A L A , J., file d a concurring opinion in which M E Y E R S , J., joined. H E R V E Y and Y E A R Y , JJ ., did not part icipate. O P I N I O N Accordin g to App lic ants ’ expert, Dr. Alexan dria Doyle, the sexual- assaul t all egations in th is ca se do not pass “the smell test. ” This emoti onal response certainl y capt ures the sense of outrage that so many harbor about these cases. Whether it is in articl es or a document ary, these c a s e s in volvi ng “The San Ant onio Four” have been well diss ected in popul ar media. See e.g. South west of Sal em: The Story of the San Ant onio Four (Deborah S. Esqu enazi Producti ons 201 6); Bridgette Dunl ap, Insi de Case Behind Wrongful Convicti on DocMayh ugh et al –3

'South west of Sal em ', R O L L I N G S T O N E , Oct. 13, 201 6; Mauric e Chamma h, Case of “San Ant

onio Four” Set to Ent er its Final

Act , T H E T E X A S T R I B U N E , March 2 9, 201 5; Mauric e Chamma h, A Gro wing Ba tt le for Exoneration , N.Y. T I M E S , Nov. 18, 20 12. But we are not asked to appl y a “smell te s t.” Rather, we are asked to decide whether the newly avail able e vid ence of inn ocence und ermines the legall y suffi cient, but hard-t o-believe version of eve nt s that led to the convict ions of these four women. W e ho ld that it does and that these four

women hav e unq uestiona bly establ ished that they are inn ocent of these charges. I. Intr oductio n In the summ er of 1994 , t wo young g irls all eged that four young lesbia n women, incl udi ng the girls ’ aunt , had sponta neously and violent ly gang -raped them on two occasions with in a sing le wee k. The who-what- when-and -where chang ed from the outcries, to the stat ements made to the polic e, to the stat ements made to the examin ing doctor, to the testi mony at two trial s. But those incons ist encies wer e easy to set asid e giv en the phys ical findin gs associat ed with chil d sexual abuse found by Dr. Nancy Kellogg , who asserted that th e ol der c hil d showed phys ical , objecti ve sign s of sexual abuse: In lig ht of Dr. Kell ogg’s t estimony , t he girl s’ stories had th e ring of t ruth. These incons ist encies can no longer be set asid e in lig ht of what we knowMayh ugh et al –4

now. Dr. Kellogg has retracted her t estimony about the phys ical ind icat ors of past trauma

. She now agrees with the defense that there are no de finiti ve sign s of sexual abuse, and she has acknowledged that her te s ti mo ny at trial

w a s w r o ng . All parti es and courts, incl udi ng thi s one, agree that all fo ur App lic ants are entit led to have their convict ions and sentences vacat ed because of the int roducti on of what is now known to be scient ifi call y inv ali d or inac curate evidence. But there is a great deal more that casts doubt upon the reliabi lit y of the convict ions i n these cases than just the unreliabl e scienti fic evidence. One of the compla inan ts, the younger sist er, now an adul t, has recanted her testi mony and explai ned how and why she and her sist er made up a story about her aunt and her aunt ’s three friends. Expert testi mony regarding false all egations of sexual assaul t now establ ishes that thi s compla inan t’s recantati on was genui ne, volun tar y, a nd s incer e, and her story fit s the profile of other false clai ms of sexual abuse. Though the other compla inan t has not recanted her trial testi mony, her sist er’s recantati on, credited by the tr ia l court, cannot be logic all y reconciled wi th the remain ing testi mony esta bli shin g gu ilt

. Furt hermore , the App lic ants ha ve also presented evidence that the compla inan ts’ fath er, Javi er L im on, has engaged in a patt ern of threatenin g behavi or towards the compla inan ts and fal s e all egations of sexual assaul t to gain leverage in disp utes over cust ody of his chil dren

. The App lic ants haveMayh ugh et al –5

presented credible testi mony that the compla inan ts’ fath er thre a te ne d and assaul ted the two compla inan ts to ensure that they accused these women of sexual abuse. Moreo ver, the App lic ants have pr e sented credible expert testi mony explain ing how the techni ques used du r in g the investi gati on o f the all eged crimes could have reinforced the compla inan ts’ child ho o d belief in a crime th at n ever occurred. Fi nall y, the App lic ants have presented new expert testi mony that they are not sex offenders. None of the four App lic ants fit the profile for sex offenders, and psych ological evaluat io ns ha ve confirmed thi s. From the moment these all e ga ti o ns wer e made, all four App lic ants have consist ently main tai ned their inn ocence and each ot her’s innocence despi te mul tip le, separat e int erviews. We conclu de that now, with thi s clear and convin cing evidence establ ishi ng inn ocence combin ed with the lack of reliabl e forensic opini on testi mony corro boratin g the fant asti cal all egations in thi s case, no rational juror could fin d any of the four App lic ant s gui lty of any of the charges beyond a reasonable doubt

. We agree with the habeas court that relief is required based

on ne w s c ie nti fic evidence, but we also hold that the App lic ants have carried their burden to e s ta blish a clai m of actu al inn ocence. Alt hough the habeas court did not reco mmend granti ng relief on actu al- inn ocence grounds, it did so strict ly because only one of the two c o mp lai nant s recanted. It relied upon a “legal suffi ciency” anal ysis with out consid ering the overw helmi ng evidence ofMayh ugh et al –6

inn ocence and its imp act upon the Sta te’s a lr e a dy weak cases. We disa gree with the habeas court's apparent assessment that the lack of a recantati on from one of the two compla inan ts is fatal to App lic ants ’ actu al- inn ocence cas e. We

exer cise our auth ority to reach the contrary conclu sion, and, according ly, grant relief und er a more comp rehensive and robust actu al- inn ocence anal ysis. See Ex p arte Re ed , 271 S.W.3d 698, 727 –28 (Tex. Crim. Ap p. 200 8).

II. The Facts as P resen ted in the Two Trials In the summ er of 199 4, nin e-year-old V.L. and her seven-year-old sist er, S.L. , stayed with their nin eteen-year-old aunt , Eli zabeth Ramirez , for several da ys whil e their mother, Rose mary Camarill o, was in Colorado. During the 1

course of their stay with Eli zabeth, who shared the apartm ent with her one-tim e gi rlfriend, Krist ie Mayh ugh , another couple, Ann a Vasq uez and Cass a nd r a Rivera, visi ted the apartm ent frequently

. Cassandra and her c hi ldren even spent the ni ght a few ti mes duri ng t he wee k of t he girl s’ vis it. The g irls’ grandm other, Serafina Limon, said th at, when th e girls came 2 home, they wer e not acti ng “normal;” they wer e subd ued, scared, and refused to make eye contact

. In mid -Sept ember, Serafina notic ed the girls play ing with their dolls in a sexual mann er. When she asked the girls why they wer e doing

T h e t e s t i m o n y i n b o t h t r i a l s i s n o t v e r y s p e c i f i c w i t h r e g a r d t o w h e n t h e e v e n t s w e r e 1 h a v e a l l e g e d t o h a v e t a k e n p l a c e . A t l e a s t o n e v e r s i o n o f e v e n t s p l a c e s t h e a l l e g e d a s s a u l t s i n A u g u s t o f 1 9 9 4

.

M s . L i m o n ’ s f i r s t n a m e i s s p e l l e d t w o d i f f e r e n t w a y s : S e r i f i n a a n d S e r a f i n a . W e u s e 2 S e r a f i n a f o r c o n s i s t e n c y ’ s s a k e . A l s o E l i z a b e t h R a m i r e z i s s o m e t i m e s r e f e r r e d t o a s L i z a n d C a s s a n d r a R i v e r a i s s o m e t i m e s r e f e r r e d t o a s C a s s i e .Mayh ugh et al –7

thi s, V.L. told Seraf in a that she and her sist er had been sexuall y assault ed at their au nt’s apartm ent by th e four women. The g irls’ basi c account s wer e thi s: the four women strip ped them, held them down, fondl ed them, and stuc k objects and liq uid s int o their vagi nas. The girls stat ed they wer e assaul ted on two dif fere nt occasions. The assaul ts wer e back- to-ba ck the first tim e, V.L. first and then S.L. , and then simu lta neously the next tim e. Accordin g to both girls , these assaul ts wer e completely sponta neous with out an y sus pici ous behavi or leading up to th em. By V.L. ’s account , the assaul ts occurred a couple of days int o the visi t to their aunt ’s apartm ent. V.L. and her sist er wer e play ing outsi de when both girls

wer e call ed insid e . Ac cording to V.L. , the women began yelli ng thi ngs at her lik e “why did you do t his? Wh y did you do that ?” V.L. was incons ist ent when explai nin g where S.L. was durin g the first assaul t; S.L. was e it he r locked outsi de, or in the li ving roo m. V.L. was brought int o Eli zabeth’s bedroom, where , acco r di ng to V.L. , Eli zabeth held her down whil e the other women started touchi ng her; the four women did not touch each other, only her. V.L. said she kick ed and screamed as the women put stuf f insi de her vagi na–liq uid stuf f, a powder, and “a tamp on or somethin g.” She said that it hurt. And after they fin ished, they told her to go take a shower. Accordin g to V.L. , she heard S. L

. s c r eaming and crying in the bedroom as she came out of the shower. Then, S.L. came out of the bedroom with no pant s on, and the women told S.L.Mayh ugh et al –8

to tak e a shower. V. L. th en went bac k outs ide t o play

. V.L. said that the nex t time she was assaul ted, it was agai n in the bedroom by Ann a and Liz (and mayb e Cassie), whil e S.L. was assaul ted in the liv ing roo m by Cassie. Or, they wer e ass a ul te d to gether. She made a stat ement that “they starte d pu tti ng some kin d of stuf f in us. Then they put liq uid in us. Cassie was the one that put the liq uid in me. They did thi s to S.L. , too.” S.L. ’s account was simi lar with regard to the fund amental s of being held down and havi ng thi ngs inserted int o her vagi na. But S.L. said that , durin g the first assaul t, when she came insi de, she heard V.L. screaming in the bedroom. She tried to peek in. Then ever yone came out of the bedroom, and she asked V.L. if she was okay. Accordin g to S.L. , V.L. went outsi de to play , and the four

women took her pant s and und erw ear off and lai d her down on the floor of the liv ing roo m. Then, Cassie "put somethin g in my privat e" whil e the other women

wer e "holdi ng me down." S.L. ind icat ed that the second assaul t happ ened the next day in the liv ing roo m, when "they put the same th in g in my privat e." Both girls said that they wer e threatened by the women thoug h they we re uncl ear ab out wheth er it was wi th a kni fe, a g un, or t wo g uns, and whether it

was by Liz, Ann a, Liz and Ann a, o r C a s s ie a nd told to keep qui et about the assaul ts. Discernin g a cohere nt pictur e of the all eged assaul ts from the dif fere ntMayh ugh et al –9

versions pro vid ed by each compla inan t ta ke s co nsid erable int ellectua l effor t. There are mul tiple dif fere nt versions of events, each one dif fering from the others, sometimes irreconcilabl y so. And th ere are s ign ifi cant incons ist encies between the versions t old by each comp lai nant . Wh ile t here appears to have been enough consist ency to barely cover the essential elements of the offenses at i ssue, t he stories by themselv es provided weak evid ence of gui lt at b est. On Septemb er 28th, the girls wer e taken by their fath er, Javi er Limon, to a cli nic for sexual- assaul t exams. Dr. Kellogg , an e xp e rt in the science of phys ical fin din gs ass ociated wi th chil d sex abus e, took hi stories from th e girls and examin ed them. She made phys ical fin din gs that wer e consist ent with the hist ory of sexual a buse each g irl relat ed. Meanwhil e the four women main tai ned their complete inn ocence. None had ever been accused of any kin d of crimi nal, violent , or otherwise anti -social behavi or, toward chil dren or anyone else. Each completely cooper ated with the homici de detectiv e a s s ign ed as the lead inv estiga tor in the case, with out inv oking their right to an att or ney. All subm itt ed to ind ivi dual int err ogati ons and gave sign ed written stat ements, expressing be w ild erment at the accusat ions an d ma int aini ng t heir in nocence. Eli z a be th Ramirez was tried first and alone, in 199 7, for sexuall y assaul tin g V.L. V.L. testi fied, but S.L. did not. Dr. Kellogg testi fied that V.L. ’s stat ements ab out t he assaul ts were “spontaneous

. . . detail ed

. . . gui leless

.Mayh ugh et al –10

. . unc ontrived. ” 3 Dr. Kellogg said V.L. ’s exam was not normal: There was a scar on the hymen, a heal ed tear. The scar in dica tes “pai nful ” penetrati on. A nd a lth ough there was no way to tell when the penetration happ ened, it was no longer than nin e years before the exam because V.L. was nin e at the tim e of the exam. Dr. Kellogg also testi fied that play ing with dolls in a sexual mann er was acti ng out and “with sexual acti ng out it tends to be more s pecifi call y lin ked to sexual abuse.” Eli zabeth, age 20, testi fied in her own defense. She said she did not do anyt hin g to the chil dren, she had “no knowledge how they could even thi nk of

me doing somethin g lik e that .” She said there was no gun , no kni fe, no threat. Never theless, she was convict ed of aggravat ed sexual assault o f a c hild and ind ecency with a chil d, and sentenced to 37 and 15 years’ imp risonment. The court of appeals affi rmed. Ramirez v. Sta te , 04-97 -0014 4-CR, 199 8 WL 412 437 (Tex. App .—S a n Ant onio Jul y 22, 199 8, pet. ref’d) (not design ated for pub lic ati on). Kr is ti e Mayh ugh , Cassandra Rivera, and Ann a Vasq uez wer e tried

G e n e r a l l y , e x p e r t t e s t i m o n y t h a t c h i l d v i c t i m s o f s e x u a l a b u s e h a v e p r o v i d e d t r u t h f u l 3 t e s t i m o n y i s i n a d m i s s i b l e . Y o u n t v . S t a t e , 8 7 2 S

. W

. 2 d 7 0 6 , 7 1 2 ( T e x . C r i m . A p p . 1 9 9 3 )

. W e h a v e h e l d t h a t t e s t i m o n y t h a t a c h i l d

- a b u s e v i c t i m d i d n o t e x h i b i t “ b e h a v i o r s t h a t p o i n t t o b e i n g m a n i p u l a t e d ” w a s n o t a d i r e c t c o m m e n t o n t h e t r u t h f u l n e s s o f t h e c h i l d v i c t i m ’ s a l l e g a t i o n s . S c h u l t z v . S t a t e , 9 5 7 S

. W

. 2 d 5 2 , 7 3 ( T e x . C r i m . A p p . 1 9 9 7 )

. B u t h e r e , D r . K e l l o g g ’ s o p i n i o n t e s t i m o n y w a s s p e c i f i c t o t h e c h i l d ’ s s t a t e m e n t s a n d c h a r a c t e r i z e d V

. L

. ’ s t e s t i m o n y a s t r u t h f u l

. T h u s , D r . K e l l o g g ’ s c h a r a c t e r i z a t i o n o f V

. L

. ’ s a l l e g a t i o n s a s “ g u i l e l e s s ” a n d “ u n c o n t r i v e d ” w o u l d r u n a f o u l o f t h e g e n e r a l p r o h i b i t i o n a g a i n s t a d m i t t i n g s u c h t e s t i m o n y t h a t w e a n n o u n c e d i n Y o u n t

.Mayh ugh et al –11

to ge ther a year lat er for sexuall y assaul tin g both S.L. and V.L. Both girls testi fied. Betw e e n th e two trial s, Dr. Kellogg found out that the girls had und ergone se xual assau lt exams i n 1992

. 4 Dr. Kellogg testi fied that , in relatin g the events, S.L. was scared, disc onnected, uncont rived, and very open. Dr. Ke ll o gg said that , when she examin ed S.L. ’s genit als, she had a lot of redness, which could be caused by irritat ion, inf lamm ati on, inf ection, or sexual trauma

. Als o, S.L. ’s hymen was thi ckened, which “could be due to abuse with trauma ,” or could have “nothi ng to do with trauma but it’s a normal variat ion.” She observed that , in the 199 2

e xa m, S. L .’ s hymen was thi ckened, and red, but not as red as it was in the 199 4 exam. On cross examin ati on, she acknowledged that S. L.’s exams were normal b ut “it doesn’t rul e out abu se.” Dr. Kellogg again te sti fied about V.L. ’s stat ement and abnormal exam–with the scarring on the hymen ind icat ing vagi nal pe ne trati on. And because the scar w as not present in th e photos taken during the 1 992 e xam, the i nju ry causi ng t he scar hap pened “sin ce the exam of 92.” All three defendant s testi fied. All three denied any inap propriate contact with the girl s . Al l three wer e convict ed of two counts of aggravat ed sexual

T h o u g h i t w a s n e v e r r e v e a l e d t o t h e j u r y i n e i t h e r t r i a l , t h e 1 9 9 2 s e x u a l a s s a u l t e x a m s 4 w e r e t h e r e s u l t o f a n a l l e g a t i o n o f s e x u a l a b u s e o r c h e s t r a t e d b y J a v i e r L i m o n i n C o l o r a d o p r i o r t o t h e a l l e g a t i o n s o f s e x u a l a s s a u l t i n t h e s e c a s e s . T h e s e 1 9 9 2 a l l e g a t i o n s c o n c e r n e d c l a i m s t h a t V

. L

. a n d S

. L

. a n d b e e n s e x u a l l y a s s a u l t e d b y a t e n - y e a r - o l d b a b y s i t t e r . A t t h e h e a r i n g o n t h e A p p l i c a n t s ’ w r i t a p p l i c a t i o n s , t h e s e a l l e g a t i o n s w e r e r e v e a l e d t o b e f a l s e a n d t h a t n o s u c h c h i l d h a d e v e r e x i s t e d

.Mayh ugh et al –12

ass a ul t o f a chil d and two counts of ind ecency with a chil d. All three wer e sentenced to fi fteen years’ imp risonment on the aggravat ed-sexual -assau lt charges, and ten years’ imp risonment on the ind ecency charges. The court of appeals in three separate, but nearly ident ical opini ons, affi rmed. Mayhu gh v. Sta te , Nos. 04-98 -0026 2-CR & 04-98 -0026 3-CR, 199 9 WL 124 692 5 (Tex. App .—Sa n Ant onio Dec. 22, 1 9 9 9, pet. ref’d); Rivera v. Sta te , Nos. 04-98 -0018 6-C R & 04-98 -0018 7-CR, 199 9 WL 124 693 4 (Tex. App .—Sa n Ant onio De c. 22 , 19 99, pet. ref’d); Vasqu ez v. Sta te , No s. 04 -98- 002 45-CR , 04-98 -0024 6-CR, 199 9 WL 124 693 21 (Tex. App .—Sa n Ant onio Dec. 22, 199 9, pet. ref’d). III . Habeas P roceedings P art 1: T he 1 1.073 C laim All four women fil ed ident ical appl icat ions for post- convict ion relief on the basi s of new scie nc e and actu al inn ocence. Jud ge Mary Roman heard the Arti cle 11.07 3 new-science clai m. This clai m was based on D r . Kellogg ’s recantati on of the c o r e o f her trial testi mony: that V.L. ’s scarred hymen ind icat ed penetrati on. The Sta te and App lic ants subm itt ed agreed fin din gs and a conclu sion that App lic ants wer e entit led to Arti cle 11.07 3 relief based on havi ng met the Arti cle 11.07 3 stan dard. The fin din gs reco gni ze d that new scient ifi c stud ies with in the field of pediat rics–showing that whil e inj ured hymens do heal, they do not leave

s c a r s in pub ertal and prepubertal girls –contradict ed the medical testi mo nyMayh ugh et al –13

presented at the trial s. Under the curren t s c ienti fic knowledge, and upon review of the origina l photograph s taken durin g th e sexual assaul t examin ati ons, there wer e, in fact, no phys ical sign s of abuse. The fin din gs on the j oint trial cases, were, in part

• Dr. Kellogg reco gni ze s that if the medical science in thi s area (as presented in D r . McCann’s stud y publi shed in 2 007 ) had bee n availab le to her i n 199 7 or in 199 8, as an expert in the field of chil d sexual abuse she "would not have testi fied that the fin din g was ind icat ive of trauma to the hy men."

• The only scient ifi c evidence before the jury that a sexual assaul t occurred was Dr. Kellogg ’s origina l trial testi mo ny that she observed a “scar” on V.L. ’s hym en tha t was t he result of “a tear th at h ad h ealed.” 5

• Dr. Kellogg testi fied that th is medical fin din g was consist ent with the sexual abuse V.L. describe d a nd "vagi nal penetration" with some unkn own object.

• At trial , the Sta te relied heavil y on Dr. Kellogg ’s expert testi mony to establ ish first, that the crime as all eged, in fact occurred, and second, to corro borate the comp lai nin g wit ness’s testi mony.

• Dr. Ke llogg's scient ifi c testi mony of V.L. 's "hymenal scar," her phys ical fin din gs and her ex pert opini ons and conclu sions derived from her phys ical fin din gs, corro borated V.L. 's tri a l t es t i m on y that she was sexuall y abused by A ppl ican t[s ].

• Alt hough Dr. Kell o gg did not testi fy to fin din g a "hymenal scar" durin g S.L. 's sexual assaul t ex am, S.L. and V.L. 's testi monies wer e so

A l t h o u g h D r . K e l l o g g d i d n o t e x p r e s s l y r e c a n t h e r t e s t i m o n y a b o u t S

. L

. ’ s p h y s i c a l e x a m , 5 t h e p a r t i e s a n d c o u r t s a p p e a r t o a g r e e t h a t h e r t e s t i m o n y a b o u t t h e “ r e d n e s s ” w a s n o n c o n s e q u e n t i a l

. A s n o t e d b y A p p l i c a n t s , D r . A s t r i d H e g e r , a n a t i o n a l l y r e s p e c t e d a n d r e c o g n i z e d e x p e r t a n d c o l l e a g u e o f D r . K e l l o g g ' s , r e v i e w e d t h e e v i d e n c e , t e s t i m o n y , a n d p h o t o g r a p h s a n d c o n c l u d e d t h a t s h e c o u l d s a y “ t o a m e d i c a l c e r t a i n t y , t h a t n e i t h e r V

. L

. n o r S

. L

. s h o w e d a n y p h y s i c a l i n d i c a t o r s o f p a s t p h y s i c a l t r a u m a t o t h e i r h y m e n s o r a n y o t h e r p a r t o f t h e i r s e x u a l o r g a n s . S p e c i f i c a l l y , t h e S e p t e m b e r 2 8 , 1 9 9 4 p h o t o g r a p h s s h o w e d t h a t b o t h S

. L

. a n d V

. L

. , a s o f t h a t d a t e , h a d p e r f e c t l y n o r m a l h y m e n s , w i t h n o p h y s i c a l i n d i c a t i o n s o f p a s t t r a u m a s w h a t s o e v e r . ”Mayh ugh et al –14

inext ricabl y int ertwined that D r. Kellogg 's scient ifi c testi mony und oubtedl y cor robor ated S.L.'s testim ony. Due to th is conn ection, it is also reasonable to believe that Dr. Kellogg 's scient ifi c testi mony factored int o the jury's evaluat ion of S.L. 's sexual assaul t exa m, a lb e it deemed "normal."

• There is a reasonable probabil ity that the outdat ed medical testi mony concerning the "hymenal scar" was ind icat ive of pe ne tr ati ng trauma to the hy men cont ribut ed to th e jurors’ belief t hat the offenses di d occur. The agreed conclu sion was that “more lik ely than not had thi s newly avail able, relevant scient ifi c evidence regarding hymenal inj uries been presented at trial , Ap pl ic a nt[s] would not have been convict ed of the two counts in the ind ict ment[ s]. ” Nearly ident ical agreed fin din gs and conclu sions wer e made in Eli zabeth Ramirez ’s case. Jud ge Roman accepted and s ign ed the fin din gs and conclu sions, reco mmendi ng that relief be granted on App lic ants ’ Arti cle 11.07 3 clai ms. These fin din gs are supp or te d by the reco rd, and we hereby adopt them. We, therefore , grant habea s corpus relief on App lic ants ’ clai ms that , more lik el y th an not, they would not have been convict ed had the newly avail able scient ifi c testi mony been presented to the jury. The remainin g clai ms

o f a c tu al innocence w ere r efer red to Judge Pat Priest, who had presided o ve r the j oint trial

. 6 IV. Habeas P roceedings P art 2: T he Actual-Innocence C laim A two-day e vi de ntiary hearing was held on the App lic ants ’ actu alT h e l a t e J u d g e M i k e M a c h a d o h a d p r e s i d e d o v e r E l i z a b e t h R a m i r e z ’ s i n d i v i d u a l t r i a l

. 6Mayh ugh et al –15

inn ocence clai ms. At thi s hearing, Rose mary Camarill o testi fied about her dif ficu lti es with her ex-hus band , Javi er, regarding their chil dren. Accordin g to Rose mary, Javi er pul led a gun on he r a nd th reatened to kil l her durin g an argument after she and her kid s had moved to Colorado. All of the chil dren saw the inci dent. During that same wee kend, Javi er took their three chil dren back to San Ant onio over Rose mary’s objecti ons. That inci dent led to a c us to dy batt le. T o gain leverage in the cust ody disp ute, Javi er made false accusatio ns that a man in Colorado, whom the girls had never been le ft alone with , had sexuall y assaul ted the girls

. Javi er also made a false accusat ion that a nonexistent 10-year-old bo y in Colorado had sexuall y assaul ted S.L. That accusat ion led to a polic e repor t and the examin ati ons of the girls in 199 2, but the i nvesti gati on was ul tim ately dropped. Accordin g to Ro semary, J avier and his mother, Serafina, had also made accusat ions agai nst others about sexuall y assaul tin g chil dren from Javi er’s other relationsh ips. Those all egations wer e also fal se; one turned out t o be based on d iaper rash. Rose mary stat ed that she has always believed her sist er to be completely inn ocent of th e s e c ha rges and has never known her sist er to possess or tal k about havi ng a gun . S he testi fied t hat S.L. confi rmed tha t when she came to liv e with her as an adul t, telli ng her, “I know that nothi ng happ ened, you know, with my Aun t Liz and her friends

. . . . all the memories that I have is memoriesMayh ugh et al –16

of good thi ngs that we did together, where she would take us shoppi ng, she would take us to eat, her and her friends. We would go to the pa r k. They would take us swimm ing

. . . . I don’t remember anyt hin g bad happ ening to us.” S.L., tw e nty-seven years old at the tim e of the hearing, ful ly and completely recanted her clai ms of sexual abuse a nd explai ned how the false all egations origina ted, how they evolved, and how they wer e encouraged. She explai ned that she remember ed her mom and dad fig hti ng over her and her

s ist er and her brother, Max, when they wer e in Colorado, and that th e “ c o ps

came out.” She could remember visi tin g the apartm ent of her Aun t Liz with her sist er when they wer e small and th at t hey li ked goin g there t o visi t. She said that the all egations agai nst her aunt and the other wo me n a r ose when her grandm other saw her, her sist er V.L., and her female cousin pl ayin g a g ame. As S.L. put it, “ Me a nd my sist er and cousin wer e in the roo m play ing , and I was pretendin g to drive a car. And my sist er V.L. and my cousin wer e in the back” pret e nd in g to be mom and dad and they wer e kissi ng, “usin g tongu es.” Their grandm other saw them and started screaming at them. Javi er

was call ed. Accordin g to S.L. , they wer e actu all y mim icki ng behavi or they had

seen their fath er engage in with other women in front of them. But when she told her fath er thi s, he insi ste d th a t s he learned it from watchi ng her lesbia n aunt

. S.L. testi fied at the habea s he aring that she heard Javi er yell at V.L. ,Mayh ugh et al –17

sayin g, “Yo u know your aunt did somethin g to you, you know your Aun t Liz did somethin g to yo u, yo u just need to be honest, what did she do, who showed you how to kiss, who showed you how to make out lik e that .” S.L. stat ed that they wer e afraid o f going agai nst Javi er because if they did so, he would hit them. She explai ned that she was never in the apartm ent alone with all of these App lic ants

. She said that the first tim e she ever saw Ann a Vasq uez was when

a polic e officer “pul led out a book, and asked us to pick o ut o ne of the ladi es that touched us. And we– I'm going to say ‘I,’ point ed out the wrong lady

. And then h e tells me no, an d sh ows me the pi cture.” She stat ed that , from the tim e Javi er told them that somethin g happ ened to them through the medical examin ati on and the polic e repo r t, she and V.L.

wer e coached on what to say. If they got the story wrong, Javi er would strike them. An d aft er the trial s, Javi er never all owe d them to tal k about th eir aunt being in prison. “One tim e I had asked him about it. And I said , what exactly happ ened, and why is it they’re there. And he told me to shut up and never bring it up agai n.” Accordin g to S.L. , Javi er was an abusi ve fath e r , a nd w he n she was fourteen, she t ried to comm it suic ide. Sh e was put in treatment . A fter a few

wee ks she moved to a group home. She never moved back in with Javi er. At nin eteen, she told her counselor that she had never be en sexuall y assaul ted,Mayh ugh et al –18

and her counselor urged her to do the right thi ng and come forward. She said that she had hesita ted because she was concerned about getti ng in trouble for not havi ng told the truth in court. S.L. tal ked to Javi er on the phone to tell him that “I was going to come and speak to somebody about the c a s e, because I don’t remember it hap penin g . . . . And when I d id tell him th at, he told me if I did that , that he was goin g t o hit me where it hurt. ” That same year, 201 2, he accused her of being a bad mother and att empted to use the courts to take her chil dren away, thoug h his effort fail ed and she ult imat ely kept her chil dren. Fi nall y, S.L. addressed her sist er’s clai ms of abuse. Accordin g to S.L. , when she was ab out thi rteen, she tal ked to V. L. about why t heir Au nt Liz was in prison. “I told her, I don’t thi nk anyt hin g ever happ ened to us. And she said it may not have happ ened to you but it happ ened to me.” She la s t talked to V.L. about three years prior to the hearing. V.L. did not testi fy at the hearing. At the hearing, App lic ants also presented testi mony from Maria Molett, the executi ve director of the Counseli ng I nsti tut e of Te xas. Molett performed psych osexual evaluat ions on Eli zabeth, Cassandra, and Krist ie , and looked at the reco rds of the person who did the evaluat ion on Ann a. She conclu ded that she never would have accepted the women for sex-offender treatment because “these people are not sex offenders” and so th ere would be nothi ng t o treat. 7

T h o u g h M s . M o l l e t t o p i n i o n s w e r e b a s e d i n p a r t o n p o l y g r a p h s , s h e t e s t i f i e d t h a t h e r 7 o p i n i o n s w e r e a l s o b a s e d u p o n r e s e a r c h

- b a s e d r i s k

- a s s e s s m e n t t o o l s u s e d i n t h e p r a c t i c e o f a s s e s s m e n t a n d t r e a t m e n t o f s e x o f f e n d e r s .Mayh ugh et al –19

All four App lic ants testi fied at the hearing–as they had at their respective trial s–that th e y are inn ocent of the charges. App lic ants also int roduced testi mony from forensic psych ologist , Dr. Alexan dria Doyle, whose expertise is in evaluat ing clai ms of sexual assaul t and r e c a ntations of such clai ms. She opined that the origina l clai ms wer e fant asti c–nothin g simi lar to what is typ ical ly seen in t rue chil d sexual -abu se cases–but t hat the recantat ion was c redible. At the end of the hearing, App lic a nt s a rgued to the habeas court that , giv e n all the inf ormation now known and the extremely weak and unreliab le natu re of the only evidence left to supp ort the convict ions, no reasonable juror could fin d App lic ants gui lty beyond a reasonable doubt

. The Sta te did very lit tle through out the whole hearing, askin g very few questi ons on cross-examin ati on

a nd declin ing to put on any evidence. Sig nif ican tly , the Sta te did no t

r e c o mm e nd denyin g or granti ng relief on actu al inn ocence, but rather stat ed that , now that it is known that Dr. Kellogg ’s testi mony in the trial s in the 199 0's

was w rong, what is left is “purely the cre dib ili ty of the witnesses, which is fo r the Court t o determine.” IV. A. The Herrera Standard This Court reco gni ze s two typ es of “inn ocence” clai ms. The one at issu e in thi s case—a Herre ra clai m—is a subst anti ve clai m in which the person asserts

a bare clai m of inn ocence based solely on newly disc overe d evidence. Ex parte Eli zondo , 947 S.W. 2d 202 , 205 (Tex. Crim. App

. 199 6); Ex parte Bro wn , 205Mayh ugh et al –20

S.W. 3d 538 , 544 (Tex. Crim. A pp. 200 6)

. Herre ra clai ms are evaluat ed on the assum pti on th a t the trial that resulted in convicti on had been err or-free

. In such a c a s e , w he n a petit ioner has been tried before a jury of his pe e r s , w it h the ful l panopl y of protections that our Constit uti on affords crimi nal defendant s, it is appropriat e t o appl y an extraordinaril y hig h stan dard of review. Ex parte Frankli n , 72 S.W. 3d 671 , 676 (Tex. Crim. App

. 200 2). Thus, to succeed in an a c tu a l- in no cence clai m, the

a pp licant must show by clear and convin cing evidence that , despit e th e evidence of gu ilt th at supp orts the convi cti on, n o reaso nabl e juror could h ave found the appl ican t gui lty in lig ht of the new evidence. Bro wn , 205 S.W. 3d at 545 ; Ex p arte Tuley , 109 S.W.3d 388, 392 (Tex. Crim. Ap p. 200 2). An appl ican t must also prove that th e evidence he relies on was not known to him at the tim e of trial and could not be known to him even with the

exer cise o f due dil igence. Bro w n, id

. Alt hough many actual- inn ocence cases

are based on a sing le piece of new evidence such as DNA or the recantati on of

a vict im or witn ess, we have made clear tha t “mul tip le pieces of newly disc overe d evidence” can together make a meritorious case for relief. Ex Parte Mil es , 359 S.W. 3d 64 7 , 6 7 1 (Tex. Crim. App

. 201 2). In practi ce, we have hig hli ght ed certain pieces of new evidence and disc ussed whether the new evidence persuasively establ ishes inn ocence when comparin g it to the evidence establ ishi ng gui lt. See e.g. Ex Parte Navarijo , 433 S.W. 3d 558 , 568 (Tex. Crim.Mayh ugh et al –21

App

. 201 4) (hi ghl igh t i ng pieces of evidence and evaluat ing their persuasiveness before denyin g an actu al- inn ocence clai m). Ult imat ely, we look to whether the total ity of the new evidence of inn ocence unq uestiona bly establ ishes that a jury

w o ul d no t have found the defendant gui lty in lig ht of the new evidence wh e n weighed agai nst the old evidence establ ishi ng gui lt. Bro wn , 205 S.W. 3d at 545 The evidence presented in supp ort of a Herre ra inn ocence clai m must be “affirma tiv e.” Frankli n , 72 S.W. 3d at 678

. Onc e th e appl ican t provides such evidence, it is appropriat e for the habeas court to procee d with the weighin g of

new evidence tendi ng to show inn ocence agai nst the evidence of gui lt produced at t rial. The habeas court then makes fin din gs of fact and conclu sions of law, and a recommendati on to t his Court. Whil e we generally defe r to fin din gs of fact when the trial court is in a better position to determine witness cr edibi lit y, we never th e le ss can exer cise

our auth ority to make contrary or alt ernative fin din gs and conclu sions when our ind ependent review of the reco rd reve als that th e tr ial jud ge’s fin din gs and conclu sions are not supp orted by the reco rd. Ex parte Re ed , 271 S.W. 3d 698 , 727 (Tex. Crim. App

. 200 8); see also Ex parte Weinstein , 421 S.W. 3d 656 , 664 (Tex. Crim. App. 201 4) (ci tin g Ex parte Chavez , 371 S.W. 3d 200 , 207 (Tex. Crim. App

. 201 2)), Ex parte Fl ore s , 387 S.W. 3d 626 , 634 -35 (Tex. Crim. App

. 201 2). Sig nif ican tly , we appl y a de novo stan dard of review to th e le ga l questi on, “Does the appl ican t’s new evidence, viewed in the lig ht mostMayh ugh et al –22

favorable to the habeas court’s factu al fin din gs and credibil ity determinat ions, actu all y prove, by clear and convin cing evidence, that a jury would acqui t him ?” See Rivera v. Sta te , 89 S.W. 3d 55, 59 (Tex. Crim. App

. 200 2). In answering thi s questi on, we consi der t he habeas court’s conclu sions of law as well as his

reco mmenda tion, but it is nonetheless a legal conclu sion that thi s Court, as the fin al decisi on maker in habeas appl icat ions, must make. Re ed , 271 S.W. 3d at 727

. Alt hough courts must carefully examin e clai ms of actu al inn ocence—e ven

one made many years after the all eged crime—recantati o ns in sexual assaul t

cases are not rare . Such post- convict ion clai ms should not be accepted with out close scruti ny nor, ge ne r all y, with out strong corro boration by ind ependent evidence. Ex parte Thompson , 153 S.W. 3d 416 , 4 20-21 (Tex. Crim. App

. 2 0 0 5 ) (g ranti ng relief on the basi s of actu al inn ocence where compla inan t’s recantati on was corro borated by normal medical e xaminati on results and evidence of mani pul ated all egations of abuse). Fo r instance, even in a case where the trial court found a compla ini ng witn ess’s recantati on credible we have nevertheless denied relief to an appl ican t convict ed of aggravat e d sexual assaul t of a chil d because of “(1) the lack of detail in the compla inan t’s recantati on testi mony at the habeas hearing and the jury’s rejection of evidence of the compla inan t’s pre-trial recantati on, and (2) the existence of incu lpat ory medical testi mony that has not been otherwise explai ned by the compla inan t’sMayh ugh et al –23

recantati on.” Navarijo , 433 S.W. 3d at 568

. To supp ort a fin din g of actu al inn ocence, a rec a nt a ti o n must be direct, specifi c and certain. Frankli n , 72 S.W. 3d at 678; Bro wn , 205 S.W.3d a t 547. V. Applicants Presen ted Substantial Credibl e and P ersuasi ve

Eviden ce Es tablishing T heir Innocence This Court agrees with App lic ants , the St ate, and Jud ges Roman and Priest that the newly ava ila ble scient ifi c evidence establ ishes, by a preponderance of the evidence that App lic ants would not have been convict ed. The ques tion remainin g is whether the addi tiona l, newly avail able evidence when compared to the evidence establ ishi ng gui lt moved thi s case to the next level, that is, where no rational juror would hav e c o nv ic ted App lic ants

. The habeas court made several fin din gs that sugg est he found S.L. ’s, Eli zabeth’s and Rose mary’s testi mony at the habeas hearing credible, as well as the testi mony from the expert that none of the App lic ants fit the profile of a sexual offender–includ ing th e following :

• During the tim e that Eli zabeth Ramirez liv ed with the Limon fami ly, a very bad relationsh ip developed between Eli zabeth Ramirez and Javi er Limon. Eli zabeth Ramirez testi fied at the writ hearing that Javi er made sexual advan ces toward her that she rejected, and when she became pregnant by ano ther man, Javi er wanted to serve as fath er fig ure for the chil d, which she al so rejected. El izabeth Rami rez did not tell Rose mary Limon about Javi er’s advances.

• Sin ce the trial , Javi e r and Rose mary have div orce d. Sin ce the div orce , Javi er ha s made false all egations that a Mr. Agu irre in Colorado, as well as a ten-y ear-old boy in that stat e, had sexuall y assaul te d these two compla inan ts. Their mother lost contact with these compla inan ts because Javi er was "diff ic ult with the girls ,” who told their mother they wantedMayh ugh et al –24

nothi ng to do with him

. This is what occ a s io ne d the girls being in Colorado with their mother, but he went there, pul led a gun on their mother (who took it a way from hi m), and brought th e girls back to San Ant onio vi a Gre yhound bus

.

• S.L. asse r ts th a t Javi er was abusi ve to all the chil dren and that it was Javi er who inst igat ed these compla int s. Al l of the App lic ants have expressed that their sexual orientati on is towa r d me mb e rs of the same sex, an d when J avier saw th e complai nant s and a femal e cousin kissi ng each other, he assum ed that they had done tha t d ue to th e i nfl uence of "Aun t Liz" (El izabeth Ramirez ) and her friends (the o th er App lic ants ). Javie r and his mother, Serafina tal ked to the compla inan ts, sugg esting that the girls had seen imp roprieties at Aun t Liz’s house and that Aun t Liz and her friends h ad b ehaved in appropriat ely wit h t he girl s.

• S.L. co nsid ere d coming f o r w a r d w ith he r recantati on w hen she was 1 9, after she inf ormed a counselor that her testi mony had been unt ruthf ul, but Javi er told her she’d be prosecuted for lyi ng and go to prison, so she did not.

• Befo re S.L. did come forward with her recantati on, Javi er told her he would "hit her w he r e it hurts" if she did so. When she did so, Javi er c o mp lained agai nst her to Chil d Protective Services regarding he r parentin g of h er ow n t hree child ren.

• Ramirez , Rivera and Mayh ugh wer e cli nica lly assessed (psy chose xu a lly evaluat ed) by the Executi ve Director of the Counselin g Inst itu te of Texas, Maria Molett, who reviews sexual offenders for the Sta te o f Texas to determine whether they re quire civi l commit ment, and each was determined not to me e t th e profile of a sexual offender. Ann a Vasq uez was not seen by Maria Molett, as she had been parole d, but a psych osexual evaluat ion of her by others employed in a simi lar capaci ty was reviewe d by her, and that evaluat io n s ug ge sts that she, too, does not m eet the crit eria. The above find ing s of th e habeas court are supported by th e re cord. Despit e these fin din gs, the habeas c o ur t did not reco mmend granti ng relief on actu al- inn ocence grounds because, thoug h S.L. recanted, V.L. had not, and her testi mony would sti ll be avail able at trial for t he jury to weigh agai nstMayh ugh et al –25

the recantati on evidence. Among the trial court’s c o nc lu s io ns are the stat ements t hat

* “Ther e is no hard scient ifi c evidence (suc h as DNA or the lik e) which scient ifi call y establ ishes the gui lt or inn ocence of any of the App lic ants .”

* “Ther e are only two eye w itnesses, and one of them contin ues to assert the t ruth of her trial testi mony. ” 8

* “The credib ili ty of these two witn esses is an issu e for the jury to decide, and no scient ifi c evidence concl usiv ely sett les th e matt er.” But i n t his regard, th e habeas court appears to h ave conduc ted a legal

suffi ciency anal ysis. The legal suffi ciency maxi ms–“a chil d’s testi mony alone is suffi cient to supp ort a convict ion for sexual assaul t,” “the jury is the sole jud ge of credibil ity and weight to be att ached to the te s ti mo ny of witn esses,” “the fact- fin der is free to believe all , part, or none of a witn ess’ s te s ti mo ny”–echo with in these conclu sions. However, thi s is not a direct ap peal. In Eli zondo , this Court delib erately stayed away from the issu e of legal suffi ciency of the evidence in actu al- inn ocence cases be c a us e no one would

ever be found actu all y inn ocent on habeas review i f the origina l t rial evi dence was legal ly s uffi cient to sup port gu ilt . A s we stat ed in Eli zondo , On reflectio n, we now acknowledge that Jackson is not a suit able s ta ndard for describi ng the appl ican t’s burden of proof in a collat eral procee din g where he does not att ack the rational ity of a factf ind er’s verdict. On the other hand , Ju s tice Blackmu n’s formulat ion, because it focuses on the appl ican t’s burden of proof, directs the habeas court, as factf ind er, to weig h th e newly

A p p l i c a n t s n o t e t h a t t h i s c o n c l u s i o n i s b a s e d , s o l e l y , o n t h e f a c t t h a t , w h e n V

. L

. w a s 8 1 5 , s h e t o l d S

. L

. t h a t t h e a b u s e “ m a y n o t h a v e h a p p e n e d t o y o u b u t i t h a p p e n e d t o m e . ”Mayh ugh et al –26

disc overe d, exculp atory evidence agai nst the incu lpat ory evidence offere d at trial for the purpo s e of determini ng whether it affi rmati vely shows the appl ican t to be inn ocent. Thus, Jus tic e Blackmu n cont inu es: Because plac ing the burden on the petit ioner to prove inn ocence creates a presumpt ion that the convict ion is vali d, it is not necessary or appropriat e to make furth er presumpt ions about the reliabi lit y of newly disc overe d evidence ge ne rally. Rather, the court charged with decidi ng such a claim should make a case-by- case de terminat ion about the reliabi lit y of the ne w ly disc overe d evidence und e r the circum stan ces. The cou r t th en should weigh the evidence in favor of the prisoner agai nst the evidence of his guilt. Obviousl y, the stronger the evidence of the prisoner’s gui lt, the more persuasive the newly discovered evidence must be. This is a far more fit tin g approach to the re s o lu ti o n of factu al issu es, focusi ng on the burden and quan tum of proof required for an affi rmati ve fi nding in the first inst ance rather than on the stan dard associat ed w it h a defere nti al review of that fin din g. Accordin gly , we now hold that , in the exer cise of our postconvi cti on habeas j urisdi cti on und er article 11.07 and 1 1.071 o f the Code of Crimin al Proce dure, our jo b is not to review the jury’s ve rdict but to decide whether the newly disc overe d evidence would have convin ced th e jury of ap pli cant ’s in nocence. Ex parte Eli

zondo , 947 S.W. 2d 202 , 207 (Tex. Crim. App

. 199 6) (q uotin g Herre ra v. Collin s , 506 U. S. 390 , 443 –44 (1993 )(Bla ckmu n, J. , diss entin g))

. This “weighin g” is why a gui lty plea doe s no t foreclose an actu al- inn ocence clai m. Tuley , 109 S.W. 3d at 392 (“The Sta te says that a gui lty plea waives any contenti on regarding the suffi ciency of the evidence. This is true, but the Sta te's assertion that a clai m of actual inn ocence is nothi ng more than a chal lenge to t he suff ici ency of t he evidence is not t rue.”).Mayh ugh et al –27

The habeas c o ur t appears to have conclu ded that , because V.L. ’s testi mony would sti ll be avail able at trial , it would be up to a jury on re-trial to

reso lve confli cts between V.L. ’s testi mony and S.L. ’s recantati on and determine which is more credible. But that is the same anal yti cal framewor k we rejected in Ex parte Navarijo

. 433 S.W. 3d at 571 -72. There , we denied relief because the habeas court simp ly performe d a one-to-one comparison between the new recantati on and th e eyew itn ess testi mony with out consid ering the strength of the State’s case as a whole. Id. The same can be said o f th e ha be a s court’s anal ysis in thi s case. Indeed, we have pre viousl y granted r elief on an actu al- inn ocence claim when newly avail able and credible recantati on evidence und ermined testi mony that would nevertheless have been legall y suffi cient und er the one-eyewitness rule. Thompson , 153 S.W. 3d at 420

. In Thompson , the defendant was charged with sexual assaul t of his daug hter, and the only direct evidence of the sexual assaul t at issu e that the jury could rely upon was the testi mony of the ei gh tyear-old compla inan t. Id. at 418

. Because there was no phys ical evidence of assaul t, the Sta te cor r oborated the compla inan t’s testi mony with the compla inan t’s mother’s testi mony that she became suspi cious of the defendant after the compla inan t came home from tim e with her fath er wearing a torn dress. Id. at 419

. But at the habeas hearing, th e de fendant presented a great deal ofMayh ugh et al –28

evidence inv olvin g the on-goin g cust ody disp ute between the defendant and his ex-wife at the tim e of the accusat ions. Id. The compla inan t herself, a twentyyear-old woman, testi fied that the sexual abuse never happ ened, and that her mother had pressured her to testi fy fals e ly. Id. The compla inan t’s mother admi tted that she had phys ical ly abused her d augh ter in the past , thoug h she denied there being any cust ody disp ute at the tim e of the all egations

. Id. She admi tted that her daug hter had origina lly said that the dress had been torn on

a bus, and the church bus dr iv er corro borated thi s by testi fyin g that she had witn essed the complain a nt te aring her dress on the bus. Id. Fi nall y, the defendant presented testi mony from an expert on int erviewing techni ques and recantati ons in chil d sexual- abuse cases who opined that the c o mpl aina nt’s recantati on was vali d. Id

. at 420

. Aft er the consid eration of the sign ifi cant imp act that all thi s evidence would have upon the Sta te’s case, we granted habeas corpus relief because no reasonable juror could have found the defendant gui lty

. Though the math may become tricki er when, as in thi s case, there is only

on e re c a ntat ion between two accusers, the ult imat e calcu lus should n ot c h a n g e. Here , the evidence presented by the App lic ants has ero ded the persuasiveness of the State’s already w eak cases just as surely as the e vid ence presented at the habeas hearing in Thompson did

. In thi s case, V.L. and S.L. ’s int erlocking accusat ions wer e presented to both juries via Dete c ti ve Matj eka, Serafina Limon, Dr. Kell ogg and the girls themselv es–V.L. at Eli zabeth’s trial , and bothMayh ugh et al –29

girls at t he join t trial

. The ac counts wer e s o int ertwined that the credibil ity of

one witn ess’s version rested on the credibil ity of the other witn ess’s version of events. Both vict ims testi fied that they wer e either assaul ted together or one right after the other. S.L. ’s habeas testi mony that nothi ng happ ened cannot be

reco ncil ed with V.L. ’s trial testi mony; a fact- fin der c ould not rational ly believe both compla inan ts. 9

A. S.L.’s R ecantatio n Is C redible and Corrobo rat ed Notably , S.L. ’s recantati on is dire ct, detail ed, certain, and strongl y

corro borated. See Thompson , 153 S.W. 3d at 420 -21. Her origina l testi mony, lik e V.L. ’s, was no t s trong to begin with , and her recantati on completely und ermines her trial testi mony. S.L. testi fied in detail regarding the events that

wer e transp iring at the time that the false accusat ions came to light , and she explai ned the un derlyin g motiv ati ons that compelled her and her sist er to fabrica te those all egations

. Cf

. Fr a nk li n , 72 S.W.3d at 678 (actual innocence not shown where child vict im recanted testimony that she had never ha d sex with any other man (other than Frankl in) ; the evidence “call s int o questi on her veracity in general, but only collat erally affects her accusat ion agai nst appl ican t”); Cf. Bro wn , 205 S.W. 3d at 547 (act ual inn ocence not proven where

I t i s w o r t h n o t i n g t h a t t h e h a b e a s c o u r t h a s a l r e a d y r e a c h e d a s i m i l a r c o n c l u s i o n w i t h 9 r e g a r d t o t h e i m p a c t o f D r . K e l l o g g ’ s “ r e c a n t a t i o n . ” A s d i s c u s s e d a b o v e , t h e h a b e a s c o u r t f o u n d t h a t t h e t e s t i m o n y o f b o t h c o m p l a i n a n t s w a s s o i n e x t r i c a b l y i n t e r t w i n e d t h a t D r . K e l l o g g ’ s t e s t i m o n y c o r r o b o r a t e d t h e e v i d e n c e s u p p o r t i n g t h e c r i m e s a g a i n s t b o t h g i r l s . W i t h o u t t h a t c o r r o b o r a t i o n , t h e h a b e a s c o u r t h e l d , t h a t t h e S t a t e ’ s c a s e w a s w e a k e n e d e n o u g h t h a t i t w a s

“ m o r e l i k e l y t h a n n o t ” t h a t a r a t i o n a l j u r y w o u l d h a v e a c q u i t t e d t h e A p p l i c a n t s .Mayh ugh et al –30

chil d vict im clai med a lack of memory and made a gl o ba l de nial of sexual abuse). Rather than provide inf ormation that would have merely und ermined her credibil ity , S.L. pr ovided affi rmati ve evidence that the assaul ts never occurred. In effect, S.L. not only recanted her own trial testi mony, she also provided cre dib le e yewitness evidence exoner ati ng t he women for the crimes agai nst V.L. The circum stan ces and tim ing of the recantati on wer e not suspi cious. As point ed out by Dr. Doyle, the first person S.L. came forward to about her recantati on was “a thi rd party who doesn't have a do g in th e show.” It was only when she fin all y found herself in a comfortabl e, safe setti ng that she could deal with her own feelings and thoug hts. Cf

. Bro wn , 205 S.W. 3d at 548 (“th e tim ing of C.B.'s re c a nt a ti o n is, at least on its face, hig hly suspi cious. It was only after appl ican t's gui lt was adju dica te d a nd he was sentenced to twelve years in prison—more than three yea r s a ft e r the all eged offense—that C.B. sudd enly t old h er mother that she had been lyi ng a ll along”)

. The recantati o n is corro borated by Rose mary Carrillo’s testi mony that Javi er, with the occasional assist ance of his mother, Serafina, had engaged in

a patt ern of inv olvin g the chil dren in false abuse all egations to gain leverage in legal disp utes. See Thompson , 153 S.W. 3d at 419 (noti ng that new evidence of an ongoing cust ody disp ute at the tim e of the accusat ions und ermined the strength of the Sta te’s case); see also Hamm er v. Sta te , 296 S.W. 3d 555 , 569

- 70 (Tex. Crim. App

. 200 9) (noti ng that a hist ory of maki ng pr io r falseMayh ugh et al –31

all egations agai nst other s could be probati ve evidence of whether all egations at issu e in the case are false und er the doctrin e of chanc es). Moreo ver, S.L. ’s testi mony, credited by the trial court, establ ish e s that Javi er repeatedly threatened S.L. with pris o n w he n she first tried to come forward with her recantati on. This corro borated S.L. ’s account that her fath er had used threats to mani pul ate her int o maki ng the sexual assaul t all egations in the first plac e, and sugg ested a reason why V .L. h ad n ot recanted h er testimony

. Ad di ti o na ll y, S. L .’ s r e c a nt a ti o n i s c o n s i s t e n t w it h th e n e w m e di c a l testi mony establ ishi ng that there wa s no phys ical evidence of sexual assaul t. Thompson , 153 S.W. 3d at 420 (noti ng that recantati on testi mony was consist ent with the la c k of phys ical evidence of abuse from the phys ical examin ati on); Cf. Navarijo , 433 S.W. 3d at 571 (cl ear and convin cing stan dard not met in lig ht of the sti ll- stan din g medical evidence sugge s ti ve o f sexual abuse that was presented at trial ). The combin e d fo r c e of S.L. ’s credible testi mony and the new scie nt if ic e vidence that there are no phys ical sign s of sexual assaul t dist ing uish es thi s case from the sit uati on presented in Navarijo where the credible recantati on te sti mony remained contradi cted by viab le medical evidence that a sexual assaul t had occurred. Navarijo , 433 S.W. 3d at 570 -7 1

. And , as we have already held, the App lic ants would not have been convict ed of these offenses had they been all owe d to c o ns ider the newly avail able, relevant sci entif ic evi dence regarding the vi cti m’s i nju ries. Fi nall y, App lic ants presented expert psych ological evidence to furth erMayh ugh et al –32

explai n why S.L. ’s recantati on is both credible and very persuasive. In decidi ng whether to grant habeas clai ms of actu al inn ocence, thi s Court has consid ere d th e te s tim ony of experts who have train ing in the detection of false sex ua labuse all egations and false recantati ons. C.f. Ex parte Harleston , 431 S.W. 3d 67, 79, 88 n. 11 (Tex. Crim. App

. 201 4) (denyi ng relief on an actu al- inn ocence clai m, in part, because the testi mony by K.D. , the recantin g witn ess at the liv e habeas hearing, was “int ernally incons ist ent and present[ed] imp laus ibl e explan ati ons” of why K.D. would have fabrica ted sexual- assaul t all egations agai nst Harleston, a nd in part based on the Sta te’s evidence at trial that incl uded “a num ber of witn esses who supp orted the circum stan ces of K.D. ’s sexual- assaul t outcr y a s g en u i n e. ” ). Here , the App lic ants ’ psych ological experts detail ed their reasons for findi ng S .L.’s recant ati on sig nif ican tly more cre dib le than th e trial testi mony t hat was in troduced i n t his case. Specif ical ly, Dr. Doyle, testi fied as to her belief that S.L .’ s r e c anta tion testi mony wa s c r e dible both in terms o f the subst ance o f the recantati on and in the mann e r in w hi ch it came to lig ht. She explai ned that psych ological stud ies have shown that telli ng a chil d a false story repeatedly eventual ly tai nts the chil d’s memory. Dr. Doyle also explai ned that thi s could have been exacerbated by the inv estiga tion its elf. At the tim e of S.L. ’s int erview by polic e, there was lit tle rese arch int o effective int erviewing techni ques for chil dren who clai m to have been sexuall y abused. Unl ike more contemporary inv estiga tions int o chil d abuse all egations , in which a train ed forensic int erviewe r asks a chil dMayh ugh et al –33

open-ended questi ons in a one-on-one int erview, Dr. Doyle noted that S.L. had sometimes been int erviewe d in front of her fath er and along s id e he r sist er. These techniques, according to Dr. Doyle, are associat ed with ind ucin g

err oneous responses and increased the lik elihood of a chil d acqui esc ing to misi nformati on pro vid ed by the interviewer o r the parent. Dr. Doyle’s expert testi mony furth er supp orts the determin a ti o n that S.L. ’s recantati on is both persuasive and credible whil e simu lta neously bring ing V. L .’s trial testi mony furth er into qu estion. Add iti onall y, App lic ants presented unch all enged testi mony fr o m the

c ur r e nt executive director of the Counselin g Inst itu te of Texas, Maria Molett, that none o f th e Applic ants had ever engaged in any behavi or simi lar to the all egations in thi s case, furth er corro boratin g S.L. ’s testi mony that the assaul ts

never occurred. Molett te s ti fied that she had previously spent ten year s as a member of the governor-appoint ed Council on Sex Offender Tre atment , which is the organizati on that makes determinat ions and polic ies regarding civi l commit ment o f s e xu a lly violent predators. She explai ned that she had determined who could become a lic ensed sex-offender-treatment provider for the Sta te-spons ore d sex-offender-treatment programs in her capaci ty as chai r of the educati on commit tee as well as a member of the Sta ndards and Practi ce commit tee. She also noted that she is a li c e nsed sex-offender-treatment provider. Mole tt reco unt ed that she had conduct ed psych osexual evaluat ions onMayh ugh et al –34

three of the App lic ants , Liz, Cassie, and Krist ie, all of whom wer e sti ll in prison when these all egations wer e being inv estiga ted. As part of thi s evaluat ion, she

r e vi e w e d all of the reco rds of the offenses for which the App lic ants wer e convict ed. She did a risk assessment, a Hare Psych opa th y, and commun ity supervisi on risk a ssessment level of service inv entory. She also t estifi ed tha t she uti lized polyg raph tests as a means of corro boratin g the inf ormation giv en to her by each App lic ant durin g these evaluat ions. Accordin g to Molett, each App lic ant she tested had passed the polyg raph tests. She also explai ned that thoug h she did not pe rform an evaluati on o f Anna, she examin ed the re cords and the test results from the person who had evaluat ed Ann a. Molett conclu ded that based upon these evaluat ions, none of the four women wer e sex offenders and none of them had e ng a ge d in devian t sexual behavi or. As menti oned above, the habeas court expressly found Dr. Mollett ’s opini on evidence credible. App lic ants urge thi s Court to not only credit Molett’s expert opini on testi mony relied upon by the habeas court, but also the exculp atory results of the polyg raph tests themselv es as proof of their inn ocence. We have previously held that polyg raph results thems e lv e s are inad miss ibl e because they are unreliab le. Leo nard v. Sta te , 385 S.W. 3d 570 , 577 (Te x. Crim. App

. 201 2) (“ Fo r more than sixt y years, we have not once wavere d from the propositio n that the results of polyg raph examin ati ons are inadmissibl e over proper objecti on because the te sts are unreliab le.”). In the context of an actu alinn ocence clai m, we have refused to consid er them as evidence of inn ocence.Mayh ugh et al –35

Mil es , 359 S.W. 3d at 662 n. 14 (“Because polyg raph exams are not admi ssib le evidence, we do not rely on these results as evidence of App lic ant’s inn ocence.”). And whil e we have acknowledged that Rule 703 all ows an expert to base his or her opini on o n o th e r wise inad miss ibl e evidence, we specifical ly declin ed to all ow thi s rule to be used to admi t polyg raph results by clai min g that the results themselv es wer e necessary to supp ort the expert’s opini on. Leo nard , 385 S.W. 3d at 582

. As we explai ned in Leo nard , Rule 703 cannot be used a condui t for admi tti ng opini ons based on “scienti fic, techni cal, or other special ized knowledge” that would not meet Rule 702 's reliabi lit y requirement. Id. Though we seemed to leave open the possib ili ty that an expert could base his or he r o pi ni o n on a polyg raph result, we refused to admi t the results of a polyg raph test und er the gu ise of an expert’s opini on that was based solely upon t he results themselv es. We do not ne e d to r e ly upon the polyg raph re sult s themselves in these

cases to determine whether the App lic ants unq uestiona bly establ ishe d their inn ocence. Fi rst, it would require thi s Court to overr ule existi ng law. App lic ants

are tryin g to do exactly what we said the St a te could not do in Leo nard , use polyg raph test results to prove the truth of those results und er the gui se of expert opini on testi mony based on those results. App lic ants have not s ho wn that our previous p rece dent was wrongly d ecided or unworkabl e. Second, the habeas corpus court clearly credited Molett’s opini on that the App lic ants in thi s case wer e not sex offenders, that they had never engaged inMayh ugh et al –36

devian t sexual behavi or, and that they wer e no t at any risk to engage in any such behavi or in the fut ure. Molett’s opini on was based upon a whole series of evaluat ions. The polyg raph results wer e us ed only to corro borate the inf ormation provided by the App lic ants in some of those tests as part of an overall treatme nt evaluat ion. 22 Tex. Adm in. Code § 810 .64(c)( 18) (“poly graph examin ati ons shal l be used as a part of a comprehensive treatment program”). Even if th e r e s ults themselv es wer e credited, they would only provide, at most, incremental proof of the App lic ants ’ clai ms beyond what the habeas court has already credited. Give n how strong the new evidence of inn ocence is when compared to how weak th e r e ma ini ng evidence of gui lt is, App lic ant s ’ c la ims for relief simp ly do not turn upon the polyg raph results themselv es. If the results of lie-d etector tests wer e truly the lyn chpin of the App lic ants ’ clai ms, it would be dif ficu lt to ar gu e th a t App lic ants have carried their Herculean burden to prove their clai m of actu al inn ocence. With a num ber of convict ions in Texas being overturned due to the fact- fin der’s reliance upon “jun k science ,” we see no reason to open the door to consid eration of hist orically unreliab le polyg raph results themselv es just because those results mig ht either enhanc e or discredit exoner ati on clai ms. In these cases, it is unn ecessary to do so. App li c a nts have presented sign ifi cant new evidence that unq uestiona bly establ ishes their inn ocence. S.L. not only establ ished that the offenses did not occ ur th rough her credible recantati on testi mony, she explai ned in detail how her fath er forced her and herMayh ugh et al –37

sist er to make the false all egations to the polic e in the first plac e. S.L. ’s recantati on is corro borated by other document ed inst ances of S.L. ’s fath er fabrica tin g all egations o f a buse in order to mani pul ate his wife in an ongoing cust ody disp ute. Dr. Doyle’s expert testi mony regarding false clai ms of abuse furth er corro bo r a te d S.L. ’s recantati on, and Maria Molett’s expert opini on supp orts the App lic ants ’ clai ms that they are not sex offenders and the all eged behavi or is completel y incons ist ent with their psych osexual hist ories and psych ological evaluat ions. All of thi s evidence combin es to pa in t a clear and consist ent pi cture of th e Appl ican ts’ i nnocence. B. T he R emaining Eviden ce of Gui lt is E xceedingl y Weak In contrast, the evid e nc e r e lied upon to convict the App lic ants pain ts a fairly incons ist ent pict ure establ ishi ng the App lic ants ’ gui lt. The e vi de nce presented at the two trial s set forth mul tip le dif fere nt ver s io ns o f how the App lic ants wer e all eged to have abus e d V.L. and S.L. durin g the tim e they visited their Aun t Liz’s apartm ent. In one version both compla inan ts w e r e together in the same roo m durin g the assaul ts, but in another the compla inan ts

wer e not in the apartm ent together because S.L. was locked outsi de whil e the App lic ants purportedly assaul ted V.L. insi de the apartm ent. At one point , S.L. clai med she saw V.L. leave the bedroom to take a shower after all egedly being assaul ted. I n another, V.L. left the bedroom to simp ly go outsi de and play imm ediately after the all eged sexual assaul t. Sometim es it was a gun to V.L. ’s he a d w he n s he was on the phone to her fath er, others it was a kni fe. TheMayh ugh et al –38

stories also vary as to the clai ms about who held the co mpl ainant s do wn and who a c tu all y commit ted the sexual assaul ts. None of the versions are consist ent regarding when these two events all egedly occurred durin g the wee k in questi on. These material confli cts are so great that it is dif ficu lt to tell which version of events t he jury believed. Most imp ortantl y, many of the deta il s of these stories are simp ly imp laus ibl e. As Dr. Doyle, explai ned in the habeas hearing, these stories simp ly did not make sense. Dr. Doyle could not fin d one piece of evidence or one

s ta tement consist ent with what one would expect in a true sexual- a bu s e all egation. Accordin g to Dr. Doyle, the e ve nt s de scribed wer e more lik e a fraternity hazing with out any of the elements of sexual abuse. For exampl e, Dr. Doyle explai ned that unl ike a typ ical fami ly sexual- abuse scenario there was no evidence in thi s case of grooming or an att empt to isolat e the chil dren. Havi ng int erviewe d hun dr eds of people who had been sexuall y abused, Dr. Doyle testi fied that she had never seen anyt hin g that came close to the all eged behavi or in thi s case. That is why she believed that thi s story was a generated story; it did not hang together. S.L. ’s testi mony did

. The Sta te did not chal lenge th is t estimony

. Given the imp laus ibl e and contradic tory natu re of the all egations , Dr. Ke ll o gg ’ s medical testi mony was crucial to the case. It was the only piece of evidence that could show a c r ime had ever occurred. Not surprisi ngl y, thi s opini on testimony was central t o the State’s theory of crimi nal lia bil ity

. FromMayh ugh et al –39

opening argument , to closin g argument , there wer e two themes in both trial s: the girls ’ stories wer e incons ist ent, but that did n’t matt er in lig ht of Dr. Kellogg ’s testi mony. At Eli zabeth’s trial, the prose cutor dealt with the coming inconsist ences head-on stat ing , in an opening argument (th at was made before it was known that S.L. would not testi fy), that “the y’ r e not going to be able to remember

ever yth ing

. And they may not be able to keep ever yth ing perfectly straig ht, but they’re going to do their best to tell you what happ ened.” Bu t “ yo u will hear from Dr. Nancy Kellogg

. . . . who has done it, if not thousa nds, a t le ast hun dreds and hun dreds of rape examin ati ons on chil dren.

. . A nd s he will tal k to you about

. . . the medical fin din g which [was] consist ent with the story that V.L. told about how Liz–Aunt Liz and h er friends raped her.” V.L. went on to testi fy in that trial that , imm ediately after th e first assaul t, her fa th e r call ed and she answered the phone. Liz then pul led out a gun and point e d it to he r head and said that “if I told anyb ody that she was going to ki ll me and my f amil y.” She was su re “1 00% sure” it was Eli zabeth. Dr. Kellogg testi fied that , in taki ng the hist ory from the girls , V.L. told her that both Liz and Ann a had gun s. Serafina, the outcry witn ess, testi fied that V.L. told her that “one of the girls had the kni fe and had told them–th reatened them t hat they were going t o do so methi ng to their d ad an d me.” An d i n her stat ement to polic e, V.L. said that it was Cassandra who made the threat to kil l. V.L. was cross-examin ed about these incons ist ences, as well as onesMayh ugh et al –40

relatin g to whether the two assaul ts happ ened on sequenti al or non-sequ ential days, whether or not S.L. was present durin g t he outcry t o Serafina, whether Eli zabeth drank nothi ng or half a bottl e of Teq ui la , whether V.L. herself was made to drink

w ine with soda o r nothi ng at all, whether S.L. w as in the liv ing

roo m play in g durin g the first assaul t or whether she was locked outsi de,

w he th e r they wer e made to go back outsi de to play after those assaul ts o r whether they stayed in the apartm ent, whether the four women wer e there the entire wee k or not, whether the women wer e screaming a t them or not, whether liq uid s wer e inserted both da ys or just the first day, whether it was Ann a who took off her pan ts or K risti e, whether the gun was held to her h ead

or to both of their heads, whether S.L. was assaul ted in the liv ing roo m or the bedroom, whether the first assault was in the morning or at 2 p.m ., and whether she saw tat toos and on who. Th e Sta te dism issed the incons ist encies in lig ht of Dr. Kellogg ’s testi mon y . You heard last ly from Dr. Kellogg

. I thi nk Dr. Kellogg , ladi es and gentl emen, int ere sti ngl y enough was perhaps on e o f the most criti cal, if not the most cr it ical, witn ess that you heard from.

. . . It’s int ere sti ng to me that after all of the emotion and after all the techni cal wizardry, it’s thi s sim ple an d t his terrifyin g painfu l. That lit tle tag, that scar at 3:00 o’clock, do n’ t ever , ever forget Dr. Kellogg ’s words t hat scar, that healed tear is ind icat ive not just of penetration. It is ind icat ive of very pa in fu l penetration. Folks , we can sit here all day long and tal k about demeanor and we can tal k about well, the incons ist encies they had wer e thi s . The incons ist encies they had wer e that

. But the medical , phys ical evidence does not lie. You can’t make that tag — you can’t make that pain ful tear, that pain ful heali ng, th at p ainf ul scar, up. That’s why we brought you Dr. Kellogg

.Mayh ugh et al –41

A year lat er, at the joint trial in 199 8, V.L. testi fied that it was Ann a who had put the gun to her hea d a nd he r Aun t Liz who had answered the phone after the all eged assaul ts. She denied that she had said , in the 199 7 trial , that it was Liz who had the gun . V.L. was agai n thoroughl y cross-examin ed on the 1 0 variat ions of the facts in heraccounts , in c luding w hether the Appl ican ts we re dressed or parti all y und resse d or ful ly und resse d, whether she made an outcry to her grandm other because of pressure she felt or s he did so in response to he r gr a ndm other’s questi oning about how the girls wer e play ing with dolls , whether the door to the outsi de was lo c ke d w ith a chai n lock or regular lock, whether she tal ked to her fath er abo ut th e assaul ts or whether her grandm ot he r to ld their fath er, whether or not Krist ie was there the first day, whether or not Krist ie was there the second day, and whether they wer e taken home or pick ed up. V.L. ’s incons ist encies a bout sign ifi cant detail s of the offense such as whether the defendant s used a gun or a kni fe, who was or was not p rese nt, and where the assaul t occurred are repre sented i n t his chart.

S e r a f i n a t e s t i f i e d a t t h e 1 9 9 8 t r i a l t h a t t h e g i r l s h a d t o l d h e r a b o u t a g u n , b u t t h a t s h e 1 0 h a d f o r g o t t e n t o t e l l t h e p o l i c e a b o u t t h e g u n . S h e s a i d s h e n e v e r m e n t i o n e d a k n i f e i n h e r 1 9 9 7 t e s t i m o n y . S h e , l i k e V

. L

. , b l a m e d t h e c o u r t r e p o r t e r f o r t h e d i s c r e p a n c y . S

. L

. t o l d p r o s e c u t o r s i n 1 9 9 6 t h a t K r i s t i e h e l d a g u n o n t h e m .Mayh ugh et al –42

19 94 outcry to Serafina

acc ’d to Serafina 19 94 statement to Dr. K ellogg 19 94 statement to polic e 19 96 interv iew with DA 19 97 trial 19 98

trial

weapo n and/or phone cal l “hel d han d real ti ght” duri ng t hreat (state men t t o poli ce)

“one of the gi rl s had the kn i fe and h ad tol d the m–t hreaten ed the m t hat the y w ere goin g to do somethi ng t o me and m y dad” (97 tri al )

gun (98 tri al ) Li z had a gun and Anna had a gun “and t hey were poin ti ng i t at my head” an d sai d i f the y t ol d “th ey woul d ki l l our fami l y” After t he second assaul t, “Ann a hel d th e gun agai nst both of our heads an d the y t ol d us not to te l l ” wh at happened After t he fi rst assaul t, Jav i er cal l ed, & “somebody had a gun and poin ted i t at [V.L.] an d tol d her t hey woul d ki l l he r”

or

“di dn’t use phone t here because Li z di sconnecte d phone be fore anyt hi ng happened,” so

ran ne xt doo r to cal l Jav i er After t he fi rst assaul t, Jav i er cal l ed, V.L. answered & L i z poin ted gu n just at V.L. and sai d “i f I tol d any body that she was goin g to k i l l

me and m y fami l y” After t he fi rst

assaul t, Jav i er cal l ed, Li z answered & Anna poin ted gu n ju st at V.L.

1st assault onl y t hree w omen the re (stat emen t t o poli ce)

al l four women the re (97 tri al ) al l four women the re; S.L. i n l i vi ng room duri ng V.L.’s assaul t; the n cal l ed i nto bedroo m Kri sti e n ot the re; S.L. i n l i vi ng room duri ng V.L.’s assaul t; the n cal l ed i nto bedroo m al l four women the re; S.L. trapped outsi de duri ng V.L.’s assaul t; the n cal l ed i nsi de al l four women the re; S.L. trapped outsi de duri ng V.L.’ s assaul t; the n cal l ed i nsi de al l four women

the re; S.L. trapped outsi de duri ng V.L.’s assaul t; the n cal l ed i nsi de

2n d assault “same thi ng happened nex t day” al l four women the re; assaul ted si mul taneousl y i n sam e room al l four women the re; assaul ted si mul taneousl y i n sam e room Kri sti e n ot the re; assaul ted si mul taneousl y i n se parate

roo ms

or

al l four women al ways t here Kri sti e n ot th ere

“she had gone to work or somethi ng”; assaul ted si mul taneousl y i n se parate

roo ms

or “She was the re.”Mayh ugh et al –43

Alt hough the court o f appeals dism issed all the incons ist ences because

none wer e on the “essential elements,” it did so because the essential elements

wer e corro borated by Nancy Kellogg ’s tes ti mo ny regarding the phys ical evidence of sexual assaul t. See Mayhu gh v. Sta te , 199 9 W L 124 692 5 at *4 (Tex. Ap p.–San An tonio Dec. 22, 199 9) (n ot desig nated for publ icat ion). Dr. Kellogg has now recanted that testi mony as scient ifi call y unreliab le. S.L. has recanted her testi mony as well, admi tti ng th a t th e a llegat ions wer e fabrica ted. Indeed, S.L. e xp la in e d exactly why the girls wer e able to remain consist ent on those point s and no others: their fath er would hit them if they did not reco unt the story corre ctl y. And fin all y, it is logic all y imp ossibl e to believe any one of V.L. 's versions if one believes S.L. 's recantati on. The Sta te’s theory of the case was that the girls wer e witn esses to each other's all eged abuse. If S.L. was not abused, neith er was V.L. With out Dr. Ke ll o gg’s or S.L. ’s testi mony, the Sta te is left with an excee din gly weak case fr om one witn ess that must stan d agai nst sign ifi cant evidence of witne s s mani pul ati on and eyewitness testi mony t hat the crim es never occurr ed. App lic a nts have presented consid erable and extremely persuasive evidence to supp ort their clai m of inn ocence. The me di c a l testi mony relied upon to s e c ure the convict ions is now known to be unreliab le. One of the

c o mp lainant s has not only recanted her own testi mony, she has prov id e d eyewitness testi mony that no assaul ts ever occurred and that she and her sist er

w e r e forced to testi fy falsely agai nst the App lic ants

. New psych ologicalMayh ugh et al –44

evidence corro borates App lic ants ’ clai ms that these all egations wer e generated through th e mani pul ati on o f the complai nant s’ by their fa ther in order to gain le verage in a cust ody disp ute. Sub stan tia l evidence regarding a hist ory o f clai ms of abuse brought forth by the compla inan t’s fath er that we no w know

wer e equall y fal se furth er corrobor ates the recantati on evidence in thi s case. And evaluat ions of each App lic ant showing that they are not sex offenders and have never engaged in devian t sexual behavi or, furth er establ ishes the clai ms of actu al inn ocence. When thi s new evidence is compared to th e St ate’s

e xc e eding ly weak case for gui lt, it is patent that the App lic ants ha ve

un qu e s ti onably establ ished their clai m that no jury could rational ly fin d them gui lty

. VI. C onclusion It has been sugg ested that the term “actua l inn ocence” is inap propriate because appl ican ts who are successfu l when raisin g a clai m of actu al inn ocence

never truly prove that they did not commit the o ff e nse. But when the presumpt ions are reve rsed, the Sta te does not have to prove that a defendant is defini tiv ely gui lty

. The Sta te does not prove that a person has commit ted a crime beyond all doubt , or even beyond a shadow of a do ub t. By proving its

case at trial according to the appl icab le stan dard, the Sta te secures the abil ity to proclaim to the cit izens of Texas that the person responsibl e for a crime has been brought to just ice, that the person is gui lty. W he n defendant s have accompl ished the Herculean task of sati sfyi ng their burden on a clai m of actu alMayh ugh et al –45

inn ocence, the converse is equall y true. Those defendant s have won the right to proclaim to the cit izens of Texas that they did not commit a crime. That they

are inn ocent. That they deserve to be exoner ated. These women have carried that burden. They are inn ocent. And they are exoner ated. This Court grants them t he relief th ey seek.

Fi led: November 2 3, 201 6 Do not P ubl ish